Brigham Young University Education and Law Journal
Volume 1999 | Issue 2
Article 2
Winter 3-2-1999
Prayer at Public School Graduation Ceremonies:
An Exercise in Futility or a Teachable Moment?
Charles J. Russo
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Charles J. Russo, Prayer at Public School Graduation Ceremonies: An Exercise in Futility or a Teachable Moment?, 1999 BYU Educ. & L.J.
1, (1999).
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PRAYER AT PUBLIC SCHOOL GRADUATION
CEREMONIES: AN EXERCISE IN FUTILITY OR A
TEACHABLE MOMENT?·
Charles J. Russo··
INTRODUCTION
One has only to look at the strife in Bosnia and Herzegovina,
Northern Ireland, and the Middle East to recognize how volatile
and violent religious differences within a society can become. 1 As
litigious as the United States has become over religion in the
marketplace of ideas, particularly in public schools, the Nation
is indeed fortunate that disputes have managed to remain nonviolent.
A major impetus for the founding of the American colonies
was the desire of many to escape the tyranny of state-sponsored
religions in Western Europe during the upheaval of the postReformation era, so it is ironic that many of the practices they
sought to avoid were transplanted into the New World. Consequently, the sense of frustration experienced by many of those
who helped create the new American Republic gave birth to the
religion clauses of the First Amendment. The Framers of the
Bill of Rights were concerned with prohibiting the establishment
of a state-sponsored religion. At the same time, the Framers did
not wish to inhibit the free exercise of religion; hence the poten-
Although not attributed to a particular author, the "teachable moment" is a
term of art that refers to a time when "conditions for learning ar~ optimum." CARTER v.
GOOD (Ed.), DICTIONARY OF EDUCATION 586 (3d ed. 1973).
** Professor, Department of Educational Administration, School of Education, and
Fellow, Center for International Programs, University of Dayton. B.A., 1972, St. John's
University; M. Div., 1978, Seminary of the Immaculate Conception; J.D., 1983, St.
John's University; Ed.D., 1989, St. John's University.
1. For a first hand account of the author's experiences in, and reflections on,
post-war Sarajevo, Bosnia and Herzegovina, see Charles J. Russo, At the Table in
Sarajevo: Reflections on Ethnic Segregation in Bosnia, 38 CATH. LAW. 211 (1998).
1
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tial for antagonism between the two religion clauses in the First
Amendment. 2
The United States Supreme Court is heir to this historic
frustration. As the final arbiter in the conflict between values in
a First Amendment dispute, the United States Supreme Court is
often in a "catch 22" situation. That is, while the Court seeks to
adhere to religious neutrality, its rulings are often perceived by
critics at both ends of the spectrum as anything but neutral. 3
Appeals to history as to the meaning of the religion clauses
as intended by the Founding Fathers fail to provide clear answers. This lack of clarity stems largely from the fact that close
ties between religion and government continued in several
states even after the adoption of the Bill of Rights. 4 As a result
of the paradox created by the mandated separation of a symbiotic relationship, the natural tension between the religion
clauses generates a similar rivalry between supporters of the
two distinct approaches to the First Amendment's religion
clauses. 5 On the one hand are supporters of the Jeffersonian
2. For background information, see generally LEO PFEFFER, CHURCH STATE AND
FREEDOM (revised edition 1967); RELIGION AND THE STATE: ESSAYS IN HONOR OF LEO
PFEFFER (James L. Wood, Jr., ed. 1985); LEONARD W. LEVY, ORIGINAL INTENT AND THE
FRAMERS' CONSTITUTION (1988); RELIGION AND POLITICS: FROM THE COLONIAL PERIOD TO
THE 1980s (Mark A. Noll, ed. 1990).
3. The Court is ordinarily the final arbiter of such disagreements. However,
tension continues to surround disagreements between the Court and other branches of
the government. Perhaps the best recent example of this tension began in Employment
Division, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990),
wherein the Court upheld the dismissal of two Native American drug counselors for
ingesting peyote, a sacrament in the Native American Church. For a discussion of this
case, See David L. Gregory & Charles J. Russo, Let Us Pray (but not them!): The
Troubled Jurisprudence of Religious Liberty, 65 ST. JOHN'S L. REV. 273 (1991).
Subsequently, Congress essentially overruled Smith by passing the Religious Freedom
Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-(4) (1993) while restoring greater
protection for religious liberty. However, the Court struck the Act down in City of
Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997). For a discussion of Boerne, see
Ralph D. Mawdsley, Invalidating the Religious Freedom Restoration Act: Implications
for Religious Liberty, 123 EDUC. L. REP. 431 (1998).
4. Up until at least until the time of the Revolutionary War, "[T]here . . were
established churches in at least eight of the thirteen former colonies and established
religions in at least four of the other five." Engele v. Vitale, 370 U.S. 421, 428 n. 5
(1962). For a review of the background, see generally Richard Hoskins, The Original
Separation of Church and State in America, 2 J.L. & RELIGION 221 (1984); Kent
Greenwalt, Religious Convictions and Lawmaking, 84 MICH. L. REV. 352 (1985).
5. For discussions of these tensions, see, e.g., 4 Rotunda & Nowak, TREATISE ON
CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, 446 (2d ed. 1992; pocket parts 1998)
446; Michael W. McConnell, Neutrality Under the Religion Clauses, 81 Nw. U. L.REV.
146 (1986); Mark V. Tushnet, Religion and Theories of Constitutional Interpretation,
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PRAYER AT GRADUATION
3
metaphor of maintaining a "wall of separation" between church
and state. 6 This wall of separation is most often associated with
the Supreme Court over the past thirty-five years. 7 On the other
hand are those, including the Christian Right, who favor accommodation to religion as long as no one religion is supported or
favored to the exclusion of others. 8
Public education presents today's Court with one of its greatest challenges as it interprets the religion clauses. 9 Although the
33 LOY. L. REV. 221 (1987); John H. Garvey, The Architecture of the Establishment
Clause, 43 WAYNE L. REV. 1451 (1997).
6. The metaphor of the "wall of separation" comes from Thomas Jefferson's letter
of January 1, 1802 to Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A
Committee of the Danbury Baptist Association. 16 WRITINGS OF THOMAS JEFFERSON 281
(Andrew A. Lipscomb, ed., 1903). Jefferson wrote:
Believing with you that religion is a matter which lies solely between man and his
God ... I contemplate with sovereign reverence that act of the whole American
people which declared that their legislature should "make no law respecting an
establishment of religion, or prohibiting the free exercise thereof," thus building a
wall of separation between church and state.
The term was first used by the Supreme Court in Reynolds v. United States, 98 U.S.
145, 164 (1879) (a case involving a Mormon's Free Exercise Clause challenge to a
federal polygamy statute)).
7. Members of the Court have had widely different perspectives on the "wall."
For example, Chief Justice Rehnquist's dissent in Wallace v. Jaffree 472 U.S. 38, 107
(1985), soundly criticized the wall. He wrote that the wall "[i]s ... a metaphor based
on bad history, a metaphor which has proved useless as a guide to judging. It should
be frankly and explicitly abandoned." For a review of Wallace, see discussion at note 40
and accompanying text. But see Justice Brennan's concurrence in which Justice
Blackmun joins in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (upholding the display
of a creche among secular symbols) at 673: "The concept of a 'wall' of separation is a
useful figure of speech .... " The viability of the wall continues to be debated. See,
e.g., Martha M. McCarthy, Is the Wall of Separation Still Standing, 77 EDUC. L. REP.
1 (1992).
8. For representative commentaries on this issue, see Michael W. McConnell,
Accommodation of Religion, 1985 SUPREME COURT REV. 1; Michael W. McConnell,
Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L.
Rev. 685 (1992); Ralph D. Mawdsley, The Advancement-Accommodation of Religion
Continuum: Searching for the Mythical Midpoint, 117 EDUC. L. REP. 21 (1997); Richard
S. Vacca,et H.C. al.Hudgins, & Louis M. Millhouse, Accommodation of Religion Without
Establishment of Religion, 115 EDUC. L. REP. 9 (1997).
9. The Court is certainly more overtly polarized over abortion. See, e.g., Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (reaffirming a woman's
ability to chose to have an abortion prior to fetal viability); Webster v. Reproductive
Health Servs., 492 U.S. 490 (1989) (holding that a statute barring the use of public
funds for the performance or assistance of non-therapeutic abortions did not contravene
the Constitution); Roe v. Wade, 410 U.S. 113 (1973) (striking down a Texas criminal
statute that prohibited abortion at any time other than to save the life of the mother
and defining a woman's "right" to have an abortion). However, when turning to
education, the Court has, over the past twenty years, addressed more school cases on
religion than any other topic, even desegregation.
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B.Y.U. EDUCATION AND LAW JOURNAL
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earliest European settlers traveled to America in search of religious freedom, their understanding of the relationship among
religion, government, and education was unlike our contemporary perspective. The notion of public education divorced from
denominational control was foreign to the colonial mind. The
lack of a clear distinction between church and state sowed the
seeds for contemporary debates-especially as church and state
intersected in the schools. The absence of a definitive interpretation of the First Amendment makes it difficult to find the balance that allows the religion clauses and public education to
maintain their integrity.
Due to conflicting lower court judgments on the propriety of
prayer at public school graduation ceremonies, this question will
return to the Supreme Court. 10 This article is divided into three
major sections. Part I briefly recites the history of the Establishment Clause and education. Part II examines case law relevant
to prayer at public school graduation ceremonies. This section
begins with a brief examination of the cases prior to Lee. 11 It
next reviews the majority and dissenting opinions in Lee in some
detail to show how the diametrically opposed views of Justices
Kennedy ofthe majority and Scalia of the dissent have helped to
shape the parameters of post-Lee debate. Part II also discusses
the tests employed by the Supreme Court and lower courts in
evaluating school-sponsored prayer or religious activity. This
section ends with a brief review of post-Lee lower court cases.
Part III discusses questions related to how prayer at public
school graduation ceremonies can be transformed into a teachable moment that allows all those gathered to develop a new
sense of respect for an opinion other than their own. Part IV
concludes that by permitting prayer at public school graduation
ceremonies, the Supreme Court does not run the risk of establishing a state-sponsored religion; instead it leads the way in
fostering a climate wherein divergent opinions are appreciated
and even celebrated.
I. HISTORY OF THE ESTABLISHMENT CLAUSE AND EDUCATION
Judicial interpretation of the Establishment Clause, especially with regard to religion and education, has a short history.
10. See infra, note 71 and accompanying text.
11. Lee v. Weisman, 505 U.S. 577 (1992).
1]
PRAYER AT GRADUATION
5
Prior to the Court's 194 7 ruling in Everson v. Board of Education, 12 the few cases involving religion, however broadly construed, and public education were decided on grounds other
than the Establishment Clause. 13 From Everson through the
early 1990s, the Court's interpretations ofboth federal and state
actions have generally maintained that the Establishment
Clause prohibits governmental sponsorship of or aid to any religion. 14 Yet, given the conservative coalition that emerges when
the swing Justices, Kennedy and O'Connor/ 5 join the conservative core of Chief Justice Rehnquist and Justices Scalia and
Thomas, the Court's attitude on aid has been altered dramatically.16
Notwithstanding the shift in the Court's stance with regard
to aid, there has been little change in its attitude toward prayer
in the schools. The Court's intransigence is highlighted in Lee v.
Weisman, 17 where the majority held that school-sponsored
prayer at public high school graduation ceremonies violates the
Establishment Clause. 18
12. 330 U.S. 1 (1947) (upholding the constitutionality of a state law from New
Jersey that reimbursed the transportation costs of parents who sent their children to
non-public schools).
13. The leading cases are Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding
that Oregon's compulsory attendance law, which required all students to attend public
schools, violated the Fourteenth Amendment's Due Process Clause), and Cochran v.
Louisiana State Bd. of Educ., 281 U.S. 370 (1930) (holding that a state law providing
textbooks to students in non-public schools did not violate the Due Process Clause of
the Fourteenth Amendment).
14. The Child Benefit test, which traces its origins to Everson, supra note 10, is
based on the premise that under certain circumstances, aid is provided primarily to
students and not the religiously affiliated schools that they attend. After being largely
ignored during the Lemon era, the Court reinvigorated the Child Benefit test in Zobrest
v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (permitting a sign language
interpreter to provide services on site in a religiously affiliated high school on the
ground that since the student was the primary beneficiary, any aid that the school
received was incidental), and Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997)
(holding that employees in a Title I program that provided remedial services on site in
religiously-affiliated non-public schools to students who were educationally and
economically disadvantaged is barred by the Establishment Clause).
15. Justice Kennedy who wrote, and Justice O'Connor, who joined, the majority
opinion in Lee are still considered moderates, at least in religion cases, in light of their
stance in aid cases.
16. The two most notable cases here are Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1 (1993) and Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997), supra,
note 14.
17. 505 U.S. 577 (1992).
18. For a case from higher education, see Tanford v. Brand, 104 F.3d 982 (7th Cir.
1997), cert. denied, 118 S. Ct. 60 (1997) (permitting an invocation and benediction at
B.Y.U. EDUCATION AND LAW JOURNAL
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II.
[1999
SCHOOL SPONSORED PRAYER OR RELATED ACTIVITY
A. SUPREME COURT CASES PRIOR TO LEE
Shortly after the New York State Board of Regents recommended and composed a prayer to be used at the start of the day
in public schools, the parents of ten students filed suit in state
court arguing that the use of official prayer was contrary to their
own religious beliefs and those of their children. In Engel v.
Vitale, the first case in which the Supreme Court considered the
propriety of prayers in schools, the Court agreed that the Board
of Regents violated the Establishment Clause even though students could have been excused from participation. 19 The Court
found that governmental involvement in creating the prayer
was dangerously close to the official establishment of religion
that many of the Framers sought to avoid-especially since the
prayer was recited in schools. 20
Faced with a growing controversy over its ruling in Engel,
the Court again found itself in the eye of a storm regarding the
companion cases of School District of Abington Township v.
Schempp and Murray v. Curlett. 21 Here the Court was asked to
address the constitutionality of a Pennsylvania statute and a
Maryland rule adopted pursuant to a state law that required
Bible reading and/or the use of the Lord's Prayer at the start of
the day in public schools. 22 More specifically, in Schempp a state
law required a student to read at least ten verses from the Bible
over the school intercom, without comment, followed by the
a university commencement on the grounds that college students were less
impressionable than students in K-12 settings and that the 155-year practice of having
a nonsectarian invocation and benediction at commencement did not violate the
Establishment Clause). For a discussion of prayer at commencement exercises in higher
education, see W. Bradley Colwell & Paul W. Thurston, Prayer and University
Commencement: Application of Lee v. Weisman, 94 Enuc. L. REP. 1 (1994).
19. 370 u.s. 421 (1962).
20. Shortly after classes completed the Pledge of Allegiance, each teacher chose
a student to recite the following prayer "Almighty God, we acknowledge our dependence
upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our
Country." ld. at 422.
21. 374 u.s. 203 (1963).
22. Although the question has apparently not been raised previously, it is worth
noting that while most Christians who belong to Protestant Church's use this title for
the words of Jesus, Roman Catholics refer to this same prayer as the "Our Father." It
would have been interesting to see what would have happened if Catholics raised this
objection.
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PRAYER AT GRADUATION
7
recitation of the Lord's prayer at the opening of each public
school day. 23 In Murray, the Board of School Commissioners in
the City of Baltimore adopted a rule pursuant to state law that
called for the daily reading of a chapter from the Bible without
comment and recitation ofthe Lord's Prayer. In both cases, children could be excused from taking part in these activities upon
the written requests oftheir parents or guardians.
Schempp introduced a new era in the relationship between
religion and government. The Court enunciated a two-part test
to invalidate both practices and, in so doing, vitiated both practices. Even though neither state was directly involved in the
composition of the prayers, students participated voluntarily,
and no one religion was favored. Justice Clark's majority opinion maintained that "The test may be stated as follows: what
are the purpose and the primary effect of the [legislative] enactment? ... [T]o withstand the strictures of the Establishment
Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." 24 The
Court quickly added that nothing in its decision excluded the
secular study of the Bible in public schools when in connection
with topics such as comparative religion, literature, or history.
The Court was soon faced with yet another dispute involving
the Establishment Clause. 25 In Lemon u. Kurtzman, the Court
considered the constitutionality of programs from Rhode Island
and Pennsylvania that aided religiously affiliated non-public
schools. 26 The case from Rhode Island centered on a state statute
that paid salary supplements to certified teachers in non-public
schools who taught only subjects that were offered in the public
schools. Similarly, the action from Pennsylvania involved a state
law that provided reimbursements for teachers' salaries, textbooks, and instructional materials for courses as long as they
23. The school provided only copies of the King James Bible. Even so, students
used the Douay and Standard versions as well as Jewish Scriptures. 374 U.S. 203, 207
(1963).
24. ld. at 222.
25. In the interim, the Court applied the Purpose and Effects test in Board of
Educ. v. Allen, 392 U.S. 236 (1968). The Court's upholding a New York State law that
required school boards to loan textbooks for secular subjects to all students regardless
of whether they attended public or non-public schools, is generally accepted as
representing the outer limit of permissible aid to religiously affiliated non-public
schools.
26. 403 U.S. 602 (1971).
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did not contain "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." 27
Invalidating both programs, the Court subsequently added a
third element, from Walz v. Tax Commission of New York City, 28
to create the tripartite test that it has since relied upon in virtually all cases involving the Establishment Clause. 29 Chief Justice Burger's majority opinion in Lemon stated that:
Every analysis in this area must begin with consideration of
the cumulative criteria developed by the Court over many
years. Three such tests may be gleaned from our cases. First,
the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances
nor inhibits religion; finally, the statute must not foster "an
excessive government entanglement30 with religion." 31
Even though the first two parts of the seemingly ubiquitous and
increasingly unworkable Lemon tesf3 2 were developed in the
context of prayer cases, it continues to be applied just as widely
in disputes involving aid to non-public schools. 33
27. Id. at 610.
28. 397 U.S. 664 (1970) (upholding New York State's practice of providing state
property tax exemptions for church property that is used in worship services).
29. As central as Lemon has been, it was conspicuous by its absence in Justice
Kennedy's opinion in Lee.
30. When addressing entanglement and state aid to institutions that are
religiously affiliated, Chief Justice Burger noted that the Court took three additional
factors into consideration: "we must examine the character and purposes of the
institutions that are benefitted, the nature of the aid that the State provides, and the
resulting relationship between the government and religious authority." Lemon v.
Kurtzman, 403 U.S. 602, 615 (1971).
31. Id. at 612-613 (internal citations omitted). (Citations omitted).
32. The Lemon test continues to generate grist for the academic mill. See, e.g.,
Carl H. Esbeck, The Lemon Test: Should it be Retained, Reformulated or Rejected? 4
NOTRE DAME J. L. ETHICS & PUB. POL 'y 513 (1990); Timothy V. Franklin, Squeezing the
Juice Out of the Lemon Test, 72 Enuc. L. REP. 1 (1992); Michael S. Paulsen, Lemon is
Dead, 43 CASE W. RES. L. REV. 795 (1993); Daniel 0. Conkle, Discussion of Lemon is
Dead, 43 CASE. W. RES. L. REV. 865 (1993); Julie K. Underwood & Julie F. Mead,
Establishment of Religion Analysis: The Lemon Test or Just Lemonade? 25 J.L. & Enuc.
55 (1996).
33. In addition to other cases cited in the footnotes, see, e.g., Meek v. Pittenger,
421 U.S. 349 (1975) (upholding text book loans; striking down the loan of instructional
equipment such as laboratory materials and maps); Wolman v. Walter, 433 U.S. 229
(1977) (upholding text book loans, the delivery of diagnostic services, and the off-site
deliver of etherapeutic services; striking down loans of instructional materials and the
use of buses for field trips for students in religiously-affiliated non public schools).
1]
PRAYER AT GRADUATION
9
As the Court has grown increasingly dissatisfied with
Lemon, Justices O'Connor and Kennedy have offered their own
alternatives. In Lynch v. Donnelly, 34 a non-school case in which
the Court upheld the display of a creche among secular symbols,
Justice O'Connor's concurrence sought to modifY Lemon by creating a two-part test:
The Establishment Clause prohibits government from making
adherence to a religion relevant in any way to a person's
standing in the political community. Government can run
afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the
institutions access to government or governmental powers not
fully shared by nonadherents of the religion, and foster the
creation of political constituencies defined along religious lines
(internal citations omitted). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they
are outsiders, not full members of the political community, and
an accompanying message to adherents that they are insiders,
favored members of the political community. Disapproval
sends the opposite message. 35
In further explaining her stance on the governmental endorsement of religion, Justice O'Connor called for modifications to
both the purpose and effect tests in Lemon:
The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion.
The effect prong asks whether, irrespective of government's
actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval. An affirmative answer
to either question should render the challenged practice invalid.3r;
34. 465 U.S. 668 (1984).
35. !d. at 687-688. (O'Connor concurring).
36. !d. at 690.
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Even though Justice O'Connor's endorsement tese 7 has been
used frequently, 38 it has yet to replace Lemon. 39
As state legislatures sought to circumvent the Court's ban on
school-sponsored prayer and religious activity, 40 laws mandating
or permitting moments of silence emerged. 41 Wallace v. Jaffree 42
was the first such case to make its way to the Supreme Court.
Here an Alabama statute originally providing for a moment of
silent meditation was amended to include voluntary prayer. In
the only case where the Court found it unnecessary to proceed
beyond Lemon's first prong, the Court decided that the law violated the Establishment Clause because the legislature was
motivated solely by the religious purpose of returning organized
37. For a more complete discussion of this test, see Julie K. Underwood,
Establishment of Religion in Primary and Secondary Schools, 55 EDUC. L. REP. 807
(1989).
38. Even though Lynch was formulated in a context other than education, the
Court applied it in the next four cases involving the Establishment Clause in disputes
surrounding K-12 education. See Edwards v. Aguillard, 482 U.S. 578 (1982) (striking
down a state law requiring balanced treatment of creation science and evolution as
violating the Establishment Clause); Aguilar v. Felton, 473 U.S. 402 (1985) (striking
down the on-site delivery of Title I services in religiously affiliated non-public schools);
Grand Rapids v. Ball, 473 U.S. 373 (1985) (striking down a program that provided
publicly-funded education for students in religiously affiliated non public schools);
Wallace v. Jaffree, 472 U.S. 38 (1985) see discussion at, infra, note 43 and
accompanying text. Surprisingly, the test was ignored in subsequent cases not involving
education. See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding the Adolescent
Family Life Act even though it aided public and non-public organizations that provided
services related to the care of pregnant adolescents and the prevention of sexual
relationships in this age group); Corporation of Presiding Bishop of Church v. Amos,
483 U.S. 327 (1987) (upholding a statutory amendment for religious organizations from
the prohibition against discrimination in employment on the basis of religion); Witters
v. Washington Servs. for the Blind, 474 U.S. 481 (1986) (holding that a vocational
rehabilitation program that provided assistance to a blind student as he studies for the
religious ministry did not violate the Establishment Clause since he, not his college,
was the primary beneficiary).
39. For a more complete discussion of Justice Kennedy's (psychological) coercion
test from Lee v. Weisman, 505 U.S. 577 (1992), see infra discussion at, infra, note 56
and accompanying text.
40. In Stone v. Graham, 449 U.S. 39 (1980), reh'g denied. 449 U.S. 1104 (1981),
remanded, 612 S.W.2d 133 (Ky. 1981), the Supreme Court struck down, without the
benefit of oral argument, a statute from Kentucky that required the posting of the Ten
Commandments on a wall of each public classroom in the Commonwealth on the ground
that it violated the Establishment Clause.
41. The Court has held firm against prayer in the schools but not other arenas.
Perhaps the most notable case in this regard is Marsh v. Chambers, 463 U.S. 783
(1983) (upholding the Nebraska legislature's practice of hiring a religious chaplain to
open each legislative day with a prayer).
42. 472 U.S. 38 (1985).
1]
PRAYER AT GRADUATION
11
prayer to the public schools. 43 As such, the Court struck the law
down since it clearly intended to characterize prayer as a favored practice.
In Karcher v. May, 44 the only other case involving a moment
of silence to reach the Supreme Court, 45 the Justices avoided
reaching a judgment on the merits. 46 The Court ruled that the
appellants, former leaders of the New Jersey State Assembly
and Senate who lost their leadership positions, lacked standing
to appeal the Third Circuit's decision upholding a ruling that
the statute permitting a moment of silence was unconstitutional.
43. If ever there was a smoking gun, State Senator Donald G. Holmes, prime
sponsor of the bill provided one. He testified that the law "was an 'effort to return
voluntary prayer to our public schools ... it is a beginning and a step in the right
direction.' Apart from the purpose to return voluntary prayer to public school, [he)
unequivocally testified that he had 'no other purpose in mind'" when he introduced the
bill. ld. at 43.
44. 484 U.S. 72 (1987). For a discussion of this case, see Steven S. Goldberg, The
Supreme Court Remains Silent on Moments of Silence: Karcher v. May, 43 Enuc. L. REP.
849 (1988).
45. More recently, a teacher in Georgia unsuccessfully challenged a state law that
permits a moment of quiet reflection in public schools. The Eleventh Circuit affirmed
that the law satisfied the Lemon test. Bown v. Gwinnett County Sch. Dist., 112 F.3d
1464 (11th Cir. 1997). See also Coles v. Cleveland Bd. of Educ., 950 F. Supp. 1337
(N.D. Ohio 1996) (upholding a board's practice of opening its meetings with a prayer
or a moment of silence on the ground that since the board meeting was fundamentally
an adult atmosphere, prayer did not violate the Establishment Clause).
46. Five courts, in six different cases, had earlier held that religious activities in
the morning did not violate state constitutions. Donahoe v. Richards, 38 Me. 379 (Me.
1854); McCormick v. Burt, 95 Ill. 263 (Ill. 1880); Moore v. Monroe, 20 N.W. 475 (Iowa
1884); Billard v. Board of Educ. of Topeka, 76 P. 422 (Kan. 1904); Hackett v.
Brooksville Graded Sch. Dist., 87 S.W. 792 (Ky. 1905); Knowlton v. Baumhover, 166
N.W. 202 (Iowa 1918). However, at least five courts, including Illinois, which had
previously decided to the contrary, held that religious exercise violated their
constitutions. See State ex rei. Weiss v. District Bd., 44 N.W. 967 (Wis. 1890); Freeman
v. Scheve, 91 N.W. 846 (Neb. 1902); People ex rei. Ring v. Board of Educ. of Dist. 24,
92 N.E. 251 (Ill. 1910); Herold v. Parish Bd. of Sch. Directors, 68 So. 116 (La. 1915);
State ex rei. Finger v. Weedman, 226 N.W. 348 (S.D. 1929).
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B. LEE V. WEISMAN
The Court47 finally agreed to hear a case on the merits of
graduation prayer48 in Lee u. Wiesman~ 9 Based on the school
system's policy of inviting religious leaders to pray at graduation
ceremonies, administrators in Providence, Rhode Island, asked a
rabbi to offer non-sectarian prayers which followed the guidelines prepared by the National Conference of Christians and
Jews. Even so, a student and her father unsuccessfully sought to
prevent the rabbi from offering the prayers. 50 Subse-
47. Prior to Lee, other courts during the Lemon era had already prohibited prayer
at graduation ceremonies. Graham v. Central Community Sch. Dist. of Decatur County,
608 F. Supp. 531 (D. Ia. 1985); Kay v. David Douglas Sch. Dist. No. 40, 719 P.2d 875
(Or. Ct. App. 1986); Bennett v. Livermore Unified Sch. Dist., 238 Cal. Rptr. 819 (Cal.
Ct. App. 1987); Lundberg v. West Monona Community Sch. Dist., 731 F. Supp. 331
(N.D. Iowa 1989); Sands v. Morongo Unified Sch. Dist., 281 Cal. Rptr. 34 (Cal. 1991).
48. Earlier, the Eleventh Circuit banned prayer prior to the start of public school
football games, Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir. 1989), cert.
denied, 490 U.S. 1090 (1989). See also Steele v. Van Buren Pub. Sch. Dist., 845 F.2d
1492 (8th Cir. 1988) (prohibiting a high school band teacher from leading the band in
prayer at mandatory rehearsals and performances); Doe v. Aldine Indep. Sch. Dist., 563
F. Sup. 883 (S.D. Tex. 1982) (holding that recitation of an expressly Christian prayer
initiated by the principal or other school employee at athletic contests and pep rallies
violated the Establishment Clause).
49. 505 U.S. 577 (1992).
50. Rabbi Gutterman's prayers were:
INVOCATION: "God of the Free, Hope of the Brave: For the legacy of
America where diversity is celebrated and the rights of minorities are
protected, we thank You. May these young men and women grow up to
enrich it. For the liberty of America, we thank You. May these new
graduates grow up to guard it. For the political process of America in which
all its citizens may participate, for its court system where all may seek
justice we thank You. May those we honor this morning always turn to it
in trust. For the destiny of America we thank You. May the graduates of
Nathan Bishop Middle School so live that they might help to share it. May
our aspirations for our country and for these young people, who are our
hope for the future, be richly fulfilled. AMEN."
BENEDICTION: "0 God, we are grateful to You for having endowed us with
the capacity for learning which we have celebrated on this joyous
commencement. Happy families give thanks for seeing their children achieve
an important milestone. Send Your blessings upon the teachers and
administrators who helped prepare them. The graduates now need strength
and guidance for the future, help them to understand that we are not
complete with academic knowledge alone. We must each strive to fulfill
what You require of us all: To do justly, to love mercy, to walk humbly. We
give thanks to You, Lord, for keeping us alive, sustaining us and allowing
us to reach this special, happy occasion. AMEN." Lee at 581-582. "God"
appears twice and "lord" once in the 252 words of prayer. However, Justice
Blackmun's concurrence noted that the phrase in the Benediction, ''We must
each strive to fulfill what you require of us all, to do justly, to love mercy,
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PRAYER AT GRADUATION
13
quently, the federal trial court permanently enjoined the district
from permitting prayer at graduation ceremonies on the grounds
that doing so violated the effect prong of Lemon by creating a
symbolic union between religion and the government. 51 The
First Circuit affirmed even though the judge who wrote the majority opinion thought it unnecessary to expand on the trial
court's analysis. 52
The Supreme Court's willingness to hear the appeal in Lee
was greeted with great anticipation for two reasons. 53 First, it
was the first time that the Court would directly address the
issue of graduation prayer. Second, since a majority of the justices sitting in the Lee decision had expressed their dissatisfaction with the Lemon test, there was the sense that Lee might
result in an alternative test. 54
Justice Kennedy's majority opinion striking down schoolsponsored prayer in the Court's bitterly divided 5-4 ruling 55
surprised most observers since it virtually ignored Lemon. 56
Kennedy found it unnecessary "to revisit the difficult ... questions of the definition and full scope of the principles governing
the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens." 57 His opinion,
to walk humbly" conveys a Judea-Christian message that was clearly
borrowed from the Prophet Micah at Chapter 6, verse 8. (Blackmun, J.,
concurring), at 604 note604 n. 5. Similarly, Justice Souter's concurrence
feared that the reference from Micah "embodies a straightforwardly theistic
premise" (Souter, J., concurring), at 617617.
51. Weisman v. Lee, 728 F. Supp. 68 (D.R.I. 1990).
52. Weisman v. Lee, 908 F.2d 1090 1090 (1st Cir. 1990).
53. Cert. granted, 499 U.S. 918 (1991).
54. Prior to Lee, a majority of the Court was on record as being less than pleased
with Lemon. Chief Justice Rehnquist and Justices Kennedy and Scalia favored rejecting
Lemon; Justices Kennedy, O'Connor, and Blackmun favored modifying the test. Only
Justices Marshall and Stevens were willing to retain Lemon without any modifications.
For a full discussion of the Justices' perspectives at that time, see Ralph D. Mawdsley
& Charles J. Russo, High School Prayers at Graduation: Will The Supreme Court
Pronounce the Benediction? 69 EDUC. L. REP. 26 (1991).
55. Justice Kennedy's majority opinion was joined by Justices Blackmun, Stevens,
O'Connor, and Souter. Justices Blackmun and Souter filed concurring opinions. Justice
Souter's opinion was joined by Justices Stevens and O'Connor. Justice Scalia's dissent
was joined by Chief Justice Rehnquist and Justices White and Thomas.
56. For a full discussion of the case, see Ralph D. Mawdsley & Charles J. Russo,
Lee v. Weisman: The Supreme Court Pronounces the Benediction on Public School
Graduation Prayers. 77 EDUC. L. REP. 1071 (1992). For a different interpretation, see
David Schimmel, Graduation Prayers Flunh Coercion Test: An Analysis uf Lee u.
Weisman. 76 EDUC. L. REP. 913 (1992).
57. Lee v. Weisman, supra, note 49, at 586.
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B.Y.U. EDUCATION AND LAW JOURNAL
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which was not organized around clearly identified concepts,
focused on two constitutional points. Namely, he examined the
relationships between the Free Exercise and Establishment
Clauses on the one hand, and the Free Speech and Establishment Clauses on the other.
Justice Kennedy's view of the relationship between the Free
Exercise and Establishment Clauses is reflected in his statement that "[t]he principle that government may accommodate
the free exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause." 58 He found
that there were three key factors in this regard: coerciveness,
potential for divisiveness, and the place of civic religion.
Kennedy offered two arguments to support his contention
that school officials violated the concept of neutrality because
"[t]he Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise .... "59
First, he pointed to the pervasive role that school officials played
in deciding to have prayer, inviting religious leaders to pray,
and offering guidelines under which the prayer was composed.
The second factor that Kennedy identified as contributing to
coerciveness was that students were truly not free to absent
themselves from their graduations. 60
After voicing an apparently unfounded concern over the
potential divisiveness of prayer in the community, Kennedy
reflected on the role of civic religion. He initially seemed to suggest the need for a civic religion founded in a "common
ground ... express[ing] the shared conviction that there is an
ethic and a morality which transcend[s] human invention, the
sense of community and purpose sought by all decent societies."61 Even so, he quickly concluded that "[t]he suggestion that
government may establish an official or civic religion as a means
of avoiding the establishment of a religion with a more specific
creed strikes us as a contradiction that cannot be accepted."62
58. ld. at 577.
59. ld.
60. Later in his opinion Kennedy discussed what he perceived as the psychological
and social pressures that students faced by having to maintain a respectful silence
during an invocation or benediction that they may not have agreed with. Id. at 593-594.
61. Id. at 589.
62. Id. at 590.
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PRAYER AT GRADUATION
15
Turning to the relationship between the Free Speech and
Establishment Clauses, Kennedy focused on what he perceived
as the "different mechanisms"63 by which these rights are protected. He probably would have been better served by using an
expression such as "different emphases" because free speech "is
protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as
its own." 64 Yet, when dealing with religious expression, the government is not supposed to be a prime participant. The government oversteps its bounds when it "disavows its own duty to
guard and respect that sphere of inviolable conscience and belief
which is the mark of a free people."65 The key factors, then, that
Kennedy went on to consider in placing different emphases between free speech and establishment clauses were psychology
and peer pressure of social conformity, the de minimis character
of graduation prayers, and the potential forfeiture of the benefit
of attending graduation that students would suffer if they chose
not to attend the ceremony. 66
Justice Scalia's scathing dissent disagreed with Justice Kennedy in four major ways. First, he stridently asserted that the
Court went "beyond the realm where judges know what they are
doing. The Court's argument that state officials have 'coerced'
students to take part in the invocation and benediction ceremonies is, not to put too fine a point on it, incoherent." 67 Scalia
further reasoned that the silence on the part of students did not
have to be interpreted as their assent to the prayer. In fact, his
eloquent comment "that maintaining respect for the religious
observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate"68
63. Id. at 591.
64. Id.
65. ld. at 592.
66. ld. at 593 passim.
67. Id. at 636. Justice Scalia issued what has to be one of the more blistering
dissents in recent memory. Just prior to this remark he wrote that "I find it a sufficient
embarrassment that our Establishment Clause jurisprudence regarding holiday displays,
has come to 'require scrutiny more commonly associated with interior decorators than
the judiciary.' But interior decorating is a rock-hard science compared to psychology
practiced by amateurs." (Internal citations omitted).
68. Id. at 638.
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offered an unanswered challenge to the Court to consider how
people must come together in a pluralistic society.
Scalia's second point of disagreement was based on his position that the acts of school officials in inviting clergy to pray did
not amount to state endorsement. Third, he criticized the historical analyses of Justice Kennedy's majority and Justice Souter's
concurrence. Scalia pointed out that unlike the time when the
Establishment Clause was adopted, and civil penalties could be
imposed for failing to comply with state-sanctioned religious
requirements, no such penalties were at issue. Finally, Scalia
distinguished Engel 69 and Schempp70 on the basis that attendance in class, unlike at a public graduation ceremony, is compulsory, rather than optional, and parents are excluded from the
former but invited to the latter.
C. POST-LEE LITIGATION
On the same day that the Court struck down Lee, it vacated,
and remanded without comment, Jones u. Clear Creek Independent School District, 71 a case from Texas with a similar set of
facts. The major difference between the suits was that in Jones,
members of a high school's senior class chose volunteers to deliver nonsectarian, nonproselytizing prayers at their graduation.
On remand to the Fifth Circuit, 72 that court placed greater
reliance on Justice Scalia's dissent than the majority opinion in
Lee. More specifically, the Fifth Circuit narrowly interpreted Lee
as precluding only those prayers that were school-sponsored. As
such, the Fifth Circuit declared that since the students, not the
school officials, invited individuals to lead the prayers, they
were constitutional. Subsequently, the Supreme Court refused
to hear an appeal in Jones. 73 Even though the Court's denial of
certiorari in Jones is of no precedential value, educators in the
Fifth Circuie 4 may permit student-initiated prayer at public
69. Engle v. Vitale, 370 U.S. 421 (1962).
70. School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963).
71. 930 F.2d 416 (5th Cir. 1991), cert. granted, vacated, and remanded, 505 U.S.
1215 (1992).
72. 977 F.2d 963 (5th Cir. 1992), reh'g denied, 983 F.2d 234 (5th Cir. 1992).
73. Cert. denied, 508 U.S. 967 (1993).
74. But see Ingbretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996).
cert. denied sub nom. Moore v. Ingebretsen, _U.S._, 117 S. Ct. 388 (1996J (invalidating
a law in Mississippi that allowed "students to initiate nonsectarian, nonproselylizing
prayer at various compulsory and noncompulsory school events"). See also Herdahl v.
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PRAYER AT GRADUATION
17
graduation ceremonies. In the interim, four other Circuits 75
have, with mixed results, addressed prayer at graduations. 76
At issue in Harris u. Joint School District No. 241, a dispute
from Idaho, was whether administrators could permit high
school students to choose, by a majority vote, whether to have
prayer at a nonmandatory graduation ceremony. 77 After a federal trial court ruled that prayer did not violate the Establishment Clause, the Ninth Circuit reversed on the basis that since
school officials still ultimately controlled the ceremony, they
could not permit students to decide whether to have public
prayer at graduation. 78 The Supreme Court sidestepped the
controversy by vacating the judgment as moot and remanding
with instructions to dismiss, apparently since the students had
graduated. 79
In American Civil Liberties Union of New Jersey u. Black
Horse Pike Regional Board of Education, 80 an en bane panel of
the Third Circuit followed the lead of Harris and affirmed that a
board policy of permitting student-led prayer at a public high
school graduation ceremony violated the Establishment Clause.
Pontotoc County Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996) (prohibiting a religious
club from making announcements including prayers and Bible readings over a school
wide intercom system; however, the court did permit student-initiated prayer before
school to continue).
75. In addition, a federal trial court in Virginia, in a case that was not appealed
to the Fourth Circuit, ruled that allowing high school students to decide whether to
include prayer in a graduation ceremony violated the Establishment Clause since state
sponsorship was inherent in the activity. Gearon v. Loudoun County Sch. Bd., 844 F.
Supp. 1097 <E.D. Va. 1993).
76. At least two lower courts have recently examined the propriety of studentinitiated prayer at school activities other than graduations. See Chandler v. James, 958
F. Supp. 1550 (M.D. Ala 1997), 998 F. Supp 1255 (M.D. Ala. 1997) (permanently
enjoining a state law that allowed student-initiated, nonsectarian voluntary prayer as
school-related events); Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199
(D.C. 1997) (holding that a proposed initiative on non-sectarian, non-proselytizing,
student initiated prayer at school related activities was not a proper subject within the
meaning of voter-initiated measures); For an earlier post-Lee case involving schoolsponsored prayer, see Doe v. Duncanville Indep. Sch. Dist., 986 F.2d 953 (5th Cir. 1993),
opinion withdrawn and superseded, 994 F.2d 160 (5th Cir. 1993) (prohibiting school
employees from initiating and leading students in prayer before and after athletic
practices and competitions).
77. 41 F.3d 447 (9th Cir. 1994).
78. Harris v. Joint Sch. Dist. No. 241, 821 F. Supp. 638 (D. Idaho 1993).
79. Cert. granted, and judgment vacated with directions to dismiss as moot, 515
u.s. 1154 (1995).
80. 84 F.3d 1471 (3rd Cir. 1996); (the court reached its decision by a nine-to-four
margin.)
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The majority held that since the board retained significant authority over the ceremony, prayer could not be upheld as promoting the free speech rights of students.
When graduating students and their parents in Florida challenged a board's policy of permitting prayer at a commencement
ceremony, the Eleventh Circuit, in Adler v. Duval County School
Board,81 affirmed a grant of summary judgment in favor of the
board. In not reviewing the merits of the trial judge's constitutional analysis, the court, in a manner not unlike Jones, was
satisfied that the students' claims for relief were moot because
they had already graduated.
The most recent disagreement over graduation prayer arose
in Idaho. In Doe v. Madison School District No. 321, 82 the Ninth
Circuit upheld a board policy of allowing each of a minimum of
four graduating students to offer "an address, poem, reading,
song, musical presentation, prayer, or any other presentation" at
their commencement. 83 The court reasoned that the policy was
acceptable because the students and not the clergy delivered the
prayer; the speakers were selected on the basis of their academic
standing; and school officials did not "'censor any presentation
or require any content.' At most, [they] 'advise[dl the participants about the appropriate language for the audience and occasion.' "84 The court drew a clear line between Madison and Lee,
finding that the policy was acceptable because it easily satisfied
all three prongs of the Lemon test. Based on the Ninth Circuit's
careful distinction, it appears that Madison is not the case that
will make its way to the Supreme Court to resolve the split over
prayer.
IV. DISCUSSION
When considering the parameters under which prayer at
public school graduation ceremonies may be constitutionally
permissible, 85 there are two larger, more important issues that
81. 112 F.3d 1475 (11th Cir. 1997).
82. 147 F.3d 832 (9th Cir. 1998).
83. !d. at 834.
84. !d.
85. For apparently the only recorded post-Lee case involving the frequently related
matter of baccalaureate services, see Shumway v. Albany County Sch. Dist. No. 11, 826
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PRAYER AT GRADUATION
19
may transform prayer from a potentially contentious exercise in
futility to a teachable moment that can unite communities. The
way in which the Court clarifies the constitutional place of
prayer, if any, at public school graduation ceremonies will have
a major impact on the United States as the nation heads into
the new millennium. The resolution of the place of prayer at
graduation ceremonies is important because the way in which
this debate is played out will reveal whether the nation still
cherishes the underlying values of freedom of religion and
speech that contributed so greatly to its foundation.
The first question concerns the paradox of how a democratic
society that was founded on religious principles but continues to
preserve the Jeffersonian metaphor by maintaining "a wall of
separation" between church and state with regard to prayer at
public school graduations, can respect the rights of both the
majority and minority. In other words, while a majority of Americans seems to favor prayer at school graduations, it is important to safeguard the rights of the minority. 86 At the same time,
in protecting the rights of the minority by banning prayer, it
F. Supp. 1320 (D. Wyo.) (holding that a school board violated the First Amendment
rights of a group of students and parents when it refused to rent them a school
gymnasium to conduct a privately sponsored baccalaureate service that would have been
open to the public and all students who wished to participate). For the two pre·Lee
cases, see Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F.
Supp. 704 (M.D. Ala. 1991) (ordering a board to rent an auditorium to a local church
that sought to conduct a baccalaureate service); Randall v. Pagan, 765 F. Supp. 793
(W.D.N.Y. 1991) (denying a preliminary injunction to a graduating senior and a parent
that would have prevented a district from leasing a high school auditorium to a
nondenominational student group that wished to conduct a baccalaureate ceremony).
86. In the most recent edition of the Phi Delta Kappa/Gallup Poll assessing
attitudes toward public school, the majority favored prayer. The same question, which
had been posed previously in 1995 and 1985, reads: "An amendment to the U.S.
Constitution has been proposed that would permit prayers to be spoken in public
schools. Do you favor or oppose this amendment?" 67% of respondents answered yes
(down from 71% in 1995 and up from 69% in 1985); 28% (up from 25% and 24%
respectively) answered no; 5% answered don't know (up from 4% and down from 7%).
More specifically, 73% of parents with children in public schools responded affirmatively
(down from 75% and no change from 73%); 22% (up from 20% and 21% respectively)
answered that they opposed the amendment; 5% (the same as last time and down from
6% respectively answered don't know. Lowell C. Rose & Alec M. Gallup, The 30th
Annual Phi Delta Kappa/ Gallup Poll Of the Public's Attitudes Toward the Public
Schools, 80 PHI DELTA KAPPAN 41, 50 (1998). Even in the face of such strong support,
the House of Representatives recently passed, by a 224-203 vote, a bill that sought to
enact an amendment supporting school prayer. However, the bill fell 61 votes short of
the two-thirds necessary to pass a constitutional amendment. Katherine Q. Seelye,
House Rejects School Prayer Amendment to Constitution, N.Y. TIMES, June 5, 1998 at
A 13.
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remains to be seen how the courts can avoid the tyranny of the
minority. 87 Therefore, finding an acceptable middle ground is
essential.
If Justice Kennedy's concern about "mutuality of obligation"88 in Lee is to have any genuine meaning, then the State,
qua public schools, must find a way to accommodate the viewpoints of all, rather than stifle the religious expression of believers. To this end, Justice Scalia's insight "that maintaining respect for the religious observances of others is a fundamental
civic virtue that government (including the public schools) can
and should cultivate"89 is crucial.
One can only wonder how educators can expect to foster an
appreciation of diversity in all of its manifestations if we cannot
tolerate expressions of religious or other beliefs that may not be
shared by all members of an audience or community. It is ironic
that in a nation that values freedom of religion, the courts have
been unable to reach a consensus on the appropriateness of
prayer at graduations. The judicial inability to formulate a measure that respects the rights of diverse groups is frustrating
where educators have, as in Lee, included well-reasoned safeguards such as selecting a religious leader from a different faith
each year and providing broad-based guidelines under which
prayers may be offered. The Lee Court's failure to respond adequately to Justice Scalia's salient observation that silence does
not necessarily mean assent has further exacerbated the situation. By silently listening to and reflecting upon whatever
prayer is being offered, members of an audience can develop a
deeper respect for perspectives other than their own. Moreover,
if the United States is to continue to grow as a nation, it is not
only unnecessary but is potentially very dangerous to limit the
parameters of civil discourse on controversial issues such as
prayer.
A second and closely related question arises in light of the
effect prong in Lemon. More specifically, if the Nation is to continue to foster on-going dialogue about diversity of perspectives,
87. For an interesting case, see Bauchman v. West High Sch., 132 F.3d 542 (lOth
Cir. 1997), cert. denied, _U.S._, 118 S. Ct. 2370 (1998) (affirming that a student failed
to state a claim for a violation of the Establishment Clause where a music director
used explicitly Christian music at a public school graduation ceremony).
88. Lee v. Weisman, supra, note 49, at 591.
89. !d. at 638.
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PRAYER AT GRADUATION
21
it is imperative that the Court provide guidance for the remainder of the federal judiciary to avoid the appearance of inhibiting
religion, especially in the aftermath of recent cases that have
been less than favorable to expressions of religious belief. 90
Lip service over the importance of respect for differences of
opinion aside, the courts must allow the schools to practice what
they preach and do more than talk about inculcating different
values. At a time when morals and values are center stage in
public debate, one can only wonder what message school children receive when the courts have ensured that their educations
are virtually sanitized of references to prayer and religion 91
other than "appropriate" discussions in history or English
classes. 92 By imposing a wall of silence that prevents believers
from exercising their constitutional rights, schools and the
90. See, e.g., Roberts v. Madigan, 921 F.2d 1047 (lOth Cir. 1990), cert. denied,
505 U.S. 1218 (1992) (preventing a teacher from reading the Bible during class time
and requiring them to removeremoving The Bible in Pictures and The Story of Jesus
from his classroom library, while books on Greek gods and goddesses and American
Indian religions remainedremain on the shelves); Washegesic v. Bloomingdale Pub.
Schs., 33 F.3d 679 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995) (upholding the
removal of a portrait of Christ, painted by a graduate of the school, that had been
posted on the wall of a public high school for thirty years); and C.H. v. Oliva, 990 F.
Supp. 341 (]).N.J. 1997) (holding that a board of education did not violate the First
Amendment rights of a first grade student when school officials changed the location
of his poster of Jesus and prevented him from reading Bible stories to his classmates).
91. In a controversy from New York City that received national attention, a
substitute teacher in a public school lost her job when she asked sixth graders if they
were willing to accept Jesus as their personal Savior and wanted to pray as the class
discussed the recent drowning death of one of their classmates. Jacques Steinberg &
Macarena Hernandez, Teacher is Now Political Cause After Dismissal for Class Prayer,
N.Y. TIMES, June 26, 1998 at B 1. In an interesting twist, even while the teacher's
wrongful termination suit was pending against the school board, it awarded her two
weeks of back pay. New Your Teacher Who Led Students in Prayer Awarded Back Pay,
MANAGING SCHOOL BUSINESS In an interesting twist, even while the teacher's wrongful
termination suit was pending against the school board, it awarded her two weeks of
back pay. New York Teacher Who Led Students in Prayer Awarded Back Pay,
MANAGING SCHOOL BUSINESS, Vol. 3, Issue 14, September 24, 1998, at 9., Vol. 3, Issue
14, September 24, 1998, at 9.
92. See Engel v. Vitale, 370 U.S. 421, 435, n. 21 (1962). The Court wrote:
There is, of course, nothing in the decision reached here that is inconsistent
with the fact that school children and others are officially encouraged to express
love for our country by reciting historical documents such as the Declaration of
Independence which contain references to the Deity or by singing officially
espoused anthems which include the composer's professions of faith in a
Supreme Being, or with the fact that there are many manifestations in our
public life of belief in God.
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courts risk sending out the unmistakable message to children
that freedom of religion is little more than a pious platitude. 93
The third not entirely unrelated question relates to the nature of the prayers themselves. Does the nation risk trivializing
the profound relationship between believers and their God about
the nature of the "prayers" at graduations? Could it be that
these "prayers" run the risk of being reduced to mere formalities, words uttered to bring a gathering to order? If this is the
case, then could a selection from a book of poetry, or even the
phone book, have the same effect if we fear "coercing" listeners
by "forcing" them to maintain silence?
In other words, if one views prayer as being, in some way,
shape, or form, a type of communication with, or, a lifting ofthe
heart and mind to God, then are not these discussions on prayer
at graduations a variation on the theme of reduction to the absurd? Is it fair to say that a few brief words from scriptures,
whether Jewish, Christian, Islamic, or Buddhist, among many
others, run the risk of "establishing" a state religion? Or does
the erection of a wall of separation almost run the risk of mocking believers while turning them into second class citizens? By
relegating prayer to a kind of afterthought, the courts and
schools may be setting a precedent that undermines the very
foundation upon which the nation was established.
IV. CONCLUSION
As controversy over the constitutionality of prayer lingers
on, a line of Supreme Court precedent from Engel v. Vitale to Lee
v. Weisman clearly prohibits officials in the public schools from
sponsoring prayer or other religious activities at school sponsored graduation ceremonies (or other activities such as athletic
contests). Yet, the place, if any, of prayer at graduation ceremonies remains unsettled in light of the Court's action, or lack
thereof, subsequent to its initial ruling in Jones v. Clear Creek
Independent School District. The Fifth Circuit's decision to adopt
the reasoning in Justice Scalia's dissent and permit studentinitiated prayer at graduations, followed by the High Court's
93. This is not to suggest that the schools should replace parents in teaching
values to children. Rather, the purpose of this discussion is to raise the question of the
confusion that undoubtedly exists in the minds of children whose parents value religion
and who then enter a school system that transmits an almost antithetical perspective.
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PRAYER AT GRADUATION
23
denial of certiorari, although of no precedential value outside of
the Fifth Circuit, meant that the question remained alive. In
fact, the ensuing split between the circuits over the constitutionality of prayer at public school graduation ceremonies virtually
ensures that this highly contentious question will eventually
find its way back to the Court.
If anything, the ongoing public discourse over the place of
prayer and other forms of religious expression in American public schools generally, or at graduation ceremonies in particular,
let alone other dimensions of public life, 94 is a revealing barometer of how deeply conflicted American attitudes are in this regard. As the Nation grows increasingly pluralistic and multicultural groups that have previously been marginalized move into
the mainstream, new and novel issues involving the place of
religion in the schools will arise. 95 Perhaps a case raised by one
of these groups that formerly have been disenfranchised will
serve as the spur that energizes the Court to reevaluate its
stance. At the same time, it is important to recognize that the
Court does not run the risk of establishing a state-sponsored
religion by permitting prayer at public school graduation ceremonies. Rather, by acknowledging the legitimate place of prayer
at graduation ceremonies in the public schools, the Court can
assume a leadership role in truly fostering a climate wherein
diversity of opinions and beliefs are not only appreciated but are
also celebrated by all Americans.
94. For a recent non-school case involving religion, see Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (upholding the right of the Ohio Knights
of the Ku Klux Klan to erect a large cross on the square in front of the state capitol).
For a discussion of this case in the broader context, see David L. Gregory & Charles J.
Russo, The Supreme Court's Jurisprudence of Religious Symbol and Substance, 28 LOY.
U. CHI. L. J. 419 (1997).
95. For a case involving a new group, see Cheema v. Thompson, 67 F.3d 883 (9th
Cir. 1995) (affirming that a district's total ban on weapons violated the religious rights
of Khalsa Sikh students who wished to wear their kirpans, or ceremonial daggers, to
school).